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Fox News Network, LLC v. TVEyes, Inc.

IP/Entertainment Case Law Updates August 25, 2015

In copyright infringement suit brought by Fox News Network against TVEyes Inc., district court concludes that TVEyes’ archiving function constitutes fair use; that its emailing function lacks various protections to ensure compliance with Copyright Act, and could not be fair use; and that its downloading and date-time search functions are not fair use.

Fox News Network brought a copyright infringement suit against TVEyes Inc., a company that records virtually all radio and television broadcasts and transforms their content into a searchable database for its subscribers (including the White House, Department of Defense, members of Congress and other organizations) to track the presentation and frequency of reported news. The parties cross-moved for summary judgment in 2014. The New York federal district court held that TVEyes’ core functions — recording content, putting it into a searchable database and, upon keyword query, allowing users to view short clips of the content up to 32 days from the date of airing — constituted fair use. The court reserved judgment on four complementary TVEyes features — archiving, emailing, downloading and date-time searching — based on concerns that those features had been inadequately explained. After supplemental discovery on the four features, the parties filed renewed cross-motions for summary judgment as to whether any of the features were protected by the fair use doctrine.

The archiving feature allows a subscriber to locate a video clip through a keyword search and to store clips in a personal digital library on TVEyes’ server. The archived clip remains available to the subscriber indefinitely. The district court held that this archiving feature constituted fair use because it provided value to TVEyes’ service, it was integral to TVEyes’ transformative use of media monitoring (i.e., converting copyrighted works into a learning tool for researchers, critics and commentators), and Fox did not identify any actual or potential market harm arising from the archiving.

The emailing feature allows a subscriber to send an email to others (including nonsubscribers) that contains a link to the subscriber’s archived video. Clicking on the link in the email streams the subscriber’s video clips to the recipient through TVEyes’ servers. The district court acknowledged that, without this feature, TVEyes users would lose much of the service’s benefit but pointed out that TVEyes did not implement an authentication process to limit the email sharing to authorized users. In its current incarnation, the emailing feature allows for “substantial potential for abuse” via “indiscriminate sharing.” Thus, until TVEyes develops sufficient protocols to reasonably ensure that its sharing of copyrighted works would not substitute Fox’s own website, thereby depriving Fox of advertising revenue, TVEyes’ emailing function could not be considered fair use.

Subscribers using the downloading feature can save digital copies of TVEyes’ video clips onto their own devices for offline use and permanent storage and access. TVEyes did not impose any technological restriction on subscribers’ use or distribution of the downloaded copy, and did nothing to identify the copy as one sourced from TVEyes, the district court noted. As a result, the downloading function went “well beyond” TVEyes’ transformative services of indexing and searching. Allowing subscribers to download unlimited clips to keep forever and distribute freely, though convenient, does not constitute fair use. Further, the downloading feature is not essential to TVEyes’ service, given that very few locations in the United States lack Internet connectivity; is not sufficiently related to the functions that made TVEyes valuable to the public; and poses an undue danger to content owners’ copyrights, the district court added.

TVEyes’ date-time search feature lets subscribers retrieve video clips of network programs using the dates and times of previous broadcasts. A subscriber seeking a desired video clip would be unable to do so if the closed-caption transcription — upon which TVEyes’ keyword search is largely based — contained errors. The district court pointed out that the date-time search feature is not as much a search tool as a content delivery tool for users who already know what they seek. “In such cases, TVEyes is not so transformational, since users should be able to procure the desired clip from Fox News or its licensing agents, albeit for a fee.”